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This book explores the implications of taking a vigorously democratic approach to issues of traditional legal theory. Allan C. Hutchinson introduces the democratic vision and examines the complementary philosophy of a Dewey-inspired pragmatism. This is followed by an examination from a pragmatic perspective of the dominant theories of analytical jurisprudence in both their positivist and naturalist forms. The book emphasizes the contested concepts of “truth”, “facts”, and “law/morality relation” and explores what a more uncompromising democratic/pragmatic agenda for law and legal theory would entail. The author's intent is to contribute to the shift away from a technical and elite philosophical approach to jurisprudence to a more democratic engagement. It advances and follows through on the critical claim that there is no position of theoretical or political innocence. Like the law it seeks to illuminate, legal theory must recognize its own political and social setting as well as its own responsibilities. Moreover, whatever else democracy might entail or imply, it opposes elite rule whether by autocrats, functionaries or theorists, however enlightened or principled their proposals or interventions may be: authority must come from below, not above.

Hans Kelsen is considered to be one of the founding fathers of modern legal philosophy. But despite Kelsen's prominence as a legal theorist, his political theory has been mostly overlooked. This book argues that Kelsen's Pure Theory of Law needs to be read in the context of Kelsen's political theory. It offers the first comprehensive interpretation of the Pure Theory that makes systematic use of Kelsen's conception of the rule of law, his theory of democracy, his defense of constitutional review, and his views on international law. Once it is read in the context of Kelsen's political works, Kelsen's conception of legality provides the basis for a notion of political legitimacy that is distinct from any comprehensive and contestable theory of justice. It shows how members of pluralist societies can reasonably acknowledge the binding nature of law, even where its content does not fully accord with their own substantive views of the requirements of justice, provided it is created in accordance with an ideal of fair arbitration amongst social groups. This result leads to a fundamental re-evaluation of the Pure Theory of Law. The theory is best understood as an attempt to find a middle ground between natural law and legal positivism. Later positivist legal theorists inspired by Kelsen's work failed to appreciate the political-theoretical context of the Pure Theory and turned to a narrow instrumentalism about the functions of law. The perspective on Kelsen offered in this book aims to reconnect positivist legal thought with normative political theory.

How can there be rights in law? We learn from moral philosophy that rights protect persons in a special way because they have peremptory force. But how can this aspect of practical reason be captured by the law? For many leading legal philosophers the legal order is constructed on the foundations of factual sources and with materials provided by technical argument. For this ‘legal positivist’ school of jurisprudence, the law endorses rights by some official act suitably communicated. But how can any such legal enactment recreate the proper force of rights? Rights take their meaning and importance from moral reflection, which only expresses itself in practical reasoning. This puzzle about rights invites a reconsideration of the nature and methods of legal doctrine and of jurisprudence itself. Legal Rights argues that the theory of law and legal concepts is a project of moral and political philosophy, the best account of which is to be found in the social contract tradition. It outlines an argument according to which legal rights can be justified before equal citizens under the constraints of public reason. The place of rights in law is explained by the unique position of law as an essential component of the civil condition and a necessary condition for freedom.

There are frequent claims that the international legal regulation in one or another field of international law is uncertain, vague, ambiguous, or indeterminate, which does not support the stability, transparency, or predictability of international legal relations. This monograph examines the framework of interpretation in international law based on the premise of the effectiveness and determinacy of international legal regulation, which is a necessary prerequisite for international law to be viewed as law. This study examines this problem for the first time since these questions were addressed, and taken as the basic premises of the international legal analysis in the works of J. L. Brierly and Sir Hersch Lauterpacht. Addressing the different aspects of the effectiveness of legal regulation, this monograph examines the structural limits on and threshold of legal regulation, and the relationship between the established legal regulation and non-law. Once the limits of legal regulation are ascertained, the analysis proceeds to examine the legal framework of interpretation that serves the maintenance and preservation of the object and intendment of the existing legal regulation. The final indispensable stage of analysis is the interpretation of those treaty provisions that embody the indeterminate conditions of non-law. Given that the generalist element of international legal doctrine has been virtually silent on the problem and implications of the effectiveness and determinacy of international legal regulation, this study examines the material accumulated in doctrine and practice for the past several decades, including the relevant jurisprudence of all major international tribunals.

This collection of essays is united by a common concern with basic questions pertaining to law and morality and the relation between the two. The first essay considers whether judges must appeal to natural law or natural justice when the law seems incomplete or indeterminate. In cases in which the law is immoral, natural law theorists and legal positivists align in their rejection of a moral obligation to obey the law. The second essay defends the view that moral rights exist independently of institutional structures. The complex issue of criminal entrapment is the focus of the third paper, and the position defended is that although an entrapped person sometimes may not be held criminally liable for the crime she voluntarily commits as a result of police enticement, in many cases we may make adverse moral judgments about her conduct. The view espoused in the fourth essay is that completed crimes and failed attempts should be treated in the same way when determining the appropriate punishment. The fifth essay offers various arguments to support the claim that funding of the arts through taxation is justified. Among other things, the arts offer intrinsic, though often benefitless, value to society, which is worthwhile to maintain and preserve. In the sixth paper, the discussion focuses on the notion of pure evil, or sheer wickedness, contrasting it with that of mental illness (or sick! sick! sickness) and identifying some places in which this distinction blurs. The final essay in this collection looks at how, since Plato's time, moral language and psychiatric language have fused ideas of immorality and mental illness.

This book presents an empiricist alternative (‘constructive empiricism’) to both logical positivism and scientific realism. Against the former, it insists on a literal understanding of the language of science and on an irreducibly pragmatic dimension of theory acceptance. Against scientific realism, it insists that the central aim of science is empirical adequacy (‘saving the phenomena’) and that even unqualified acceptance of a theory involves no more belief than that this goal is met. Beginning with a critique of the metaphysical arguments that typically accompany scientific realism, a new characterization of empirical adequacy is presented, together with an interpretation of probability in both modern and contemporary physics and a pragmatic theory of explanation.